Host Sean Harris talks with OAJ member and Massillon attorney, Hans Nilges, about hidden employment claims that may be lurking in other types of cases, specifically personal injury and workers’ compensation.

Sean: Hello and welcome to Civilly Speaking, OAJ’s monthly podcast on practical and timely legal issues, I’m your host Sean Harris. Our guest today is Hans Nilges from the Canton area, although Massillon to be specific and our topic today is employment claims and hidden employment claims that may be lurking in other types of cases. Hans Nilges thanks very much for joining us here on Civilly Speaking.

Hans: Thanks for having me. I appreciate it.

Sean: Many times people will be handling a you know a personal injury case or a workers’ comp case, where would there be an employment law issue hiding in one of those?

Hans: We work with a lot of workers’ comp and personal injury lawyers and we find that the people that you know are represented by those attorneys also have associated employment law claims because they’ve been injured and often have difficulty with their employer. For instance, they might need medical leave and the employer is intolerant of it and ends up terminating them and then we get the call after the termination happens. We’ll examine that termination and a lot of time there’s nothing there, but sometimes we’ll find that maybe the employer didn’t provide medical leave that’s required under the law and there are a few areas of the law that do protect people that need medical leave. One of them is the FMLA, for employers that are a little larger, at fifty or more employees and you know it’s very technical statute and there are a lot of things that need to be done. There are notices that need to be provided; there is a certain minimum amount of leave that needs to be provided. For example, even if somebody, pardon me, going back a little bit. A lot of times employers will see a claim as maybe workers’ comp, but not as something that is also eligible for FMLA even if they are aware of the FMLA they might just be looking at just as this is a workers’ comp case and not provide the leave and end up terminating them without providing the leave and that’s where we come in. Another opportunity is where somebody has maybe a chronic condition where they don’t need a block of leave and the employer doesn’t recognize the need to provide intermittently for a chronic condition so for example if somebody has developed migraines from a personal injury or workers’ comp case that a doctor is certified for needing maybe two or three days as much as a week or a month or something like that off to deal with the migraine the employer a lot of times just kind of gets sick of dealing with it. You know, maybe give them whatever leave they’re entitled to under their policy and terminate them before the FMLA entitlement is exhausted and so that’s one thing. There are other statutes beyond the FMLA, like for instance the American’s with Disabilities Act. There are requirements to provide people with medical conditions accommodations. One that employers often miss is unpaid leave as a reasonable accommodation so let’s say you’ve got an employer whose not FMLA covered so they are below fifty employees at a location and the employee has a medical condition where they need maybe two or three weeks of leave and they fire them. Under the ADA that is potentially a violation because the ADA does provide limited medical leave, unpaid as a reasonable accommodation. In another way the reasonable accommodation might come into play is let’s say somebody had some restrictions from personal injury or workers’ comp injury. What happened and they can still do their job if the employer just provides certain assistance and the employer just doesn’t want to do it. That’s where we can come in and help the employee. Those are just a couple of things that we see.

Sean: Forgive me, as a non-employment law practitioner but I’ve heard you say the word reasonable accommodations assuming that the parties can’t agree what’s reasonable, is that a question of fact for a jury to decide ultimately?

Hans: It very, very often is and there is an interactive process and that’s right in the regulations that’s required for the employer and the employee to go through. So the way it works is if the employee, let’s say they have a back condition that limits them from lifting twenty pounds or something like that due to a personal injury or a workers’ comp injury and something like for instance they’re a lab tech, just to pick on something, and part of their job is they need to lift from the floor certain material and put it on a lab table. Well an easy accommodation might be well why don’t we just open the package there and remove things one at a time and the reason I am giving that specific example is that’s a case that we are dealing with right now and the employer said no I am not going to do that, which that’s exactly the kind of thing that ends up being, well is that a reasonable request or an unreasonable request? The employers going to do their best to say it’s an unreasonable request, but of course we disagree.

Sean: Right.

Hans: Other cases that we’ve seen and been able to achieve settlements on once attorneys get involved, we have people who are unable to stand after an injury for long periods of time and for whatever reason the employer just doesn’t want to give them a stool to sit on to do their job.

Sean: Well that’s outrageous you would ask for a stool.

Hans: Right and then, or to give them you know periodic breaks, five or ten minutes to help them kind of recover to get back to the floor or back to their job or whatever it is so those are the types of things you see and I represented employers for a long time and the reason that I know that these claims are out there and they’re rampant really is because where as employers can be good at hiding certain types of discrimination, for whatever reason the disability, the medical leave issues, the accommodation issues really just gets under their skin because it’s difficult to comply with, it takes a lot of energy, sometimes money and they just get sick of dealing with them and I realized that so when I switched to the good side, I realized that and I am aware of those claims and I am trying to help people that are experiencing those issues and work with attorneys who are servicing them for other reasons both identify those issues and then provide the next step up service for their client.

Sean: I am intrigued by the, you talked earlier about employers of less than fifty employees that wouldn’t be covered by FMLA and I have had those issues come up and it feels wrong that somebody would be able to get fired because they were injured through no fault of their own, but in those situations it sounds like ADA is a possible legal claim. Is that it or for the smaller employers, are there other avenues of potential recovery there?

Hans: To answer your question, are there other avenues? Once you’re dealing with a termination, we are going to look at everything. We’re going to have an opportunity to sit down and interview them and say okay what is it that’s going on in your employment situation that might have led to your termination that isn’t a legitimate reason and that could be any form of discrimination. It just so happens to be that when somebody’s fired for a personal injury, workers’ comp injury, we’re finding a lot of the ADA and FMLA claims but yes there’s a whole realm of things from race discrimination…

Sean: I see.

Hans: Gender discrimination, age discrimination, workers’ comp retaliation, a whole host of things.

Sean: And one of the things, I think an interesting area of the law when you’re looking at, I imagine, the entirety of the employment situation is wage and hour issues and classifications of employees.

Hans: Yeah. Our firm is proudly, we have filed the second most collective actions last year and since we opened and I think we’re the second most in the state to file collective actions, with the first being my friend Anthony Lazzaro and every time we look at a file that’s something we are looking for because, where as with a wrongful termination we are pretty picky about those cases because they can be difficult to win. We do find them quite often and when we do we file them, but believe it or not more often we’re finding wage and hour claims. So give you an example somebody comes in and, just to give another example from real life, a lady comes to us from one of our referral partners, you know she’s, you know telling the whole story about her termination and it looks actually pretty good and then it’s like well when’s the last time you worked for them? Well it was well over a year ago, okay and so she was on medical leave for over a year. I thought that would be beyond what might be considered a reasonable accommodation, but when we’re talking to somebody, always the next question once we decide there’s not a claim or there is, even, we say well how are you getting paid and then we walk through a whole check list of things. Are you getting a bonus? Are you paid to shift? Are you classified as an independent contractor? Tell me about if you’re classified as exempt from over time requirements. Let’s walk through what your duties are and what you’re actually doing. Are you traveling for your work and are you getting paid for that travel time, getting paid for all your breaks? There’s a whole list of things that we’re examining and the FLSA, which is the controlling federal law, has lot of very, very strict requirements and employers are often violating them and we find those claims routinely and it’s always fun to me where somebody has come in to me like the lady who had been let go because she was on medical leave for over a year and there’s nothing I can do for them, where we can’t help them with that, but they’ve still been mistreated where we can then say hey we can’t help you with your termination, but let me show you while we can get you some justice. In that particular case, it turned out it was an employer of twenty-five hundred people and they weren’t paying their own healthcare workers for travel time. So what they would do is they would only pay for the time that they were working at a particular location, but when they moved to the next location they weren’t paying for that travel. So if you were working at location A for awhile and then you travelled twenty minutes to location B and maybe C, whatever, they weren’t paying for that commute time and that’s illegal. So we were able to find that by, even though we couldn’t help with the wrongful termination issue, we were able to identify that issue and the lady was pleased to learn she could serve as a class representative and you know ended up doing that for twenty-five hundred people.

Sean: Wow.

Hans: And you know we end up settling that case for seven figures and she gets to participate in that and not to say get revenge, but get some justice for herself and a lot of other people that way and you know it ends up I am able to get her some sort of financial reward as well even though there was nothing else I or anybody else could do for her because of her termination.

Sean: Do you have a sense on these wage and hour cases whether the employers are doing this out of actual malice and ill will and they’re trying to get around the law or is it simply ignorance of the law they just didn’t know?

Hans: Well we run into kind of both types as you might imagine. I mean, okay so you have an employer who provides certain types of bonuses to somebody and it gets into a little complicated claim because those bonuses then need to be put into their regular compensation by work week and in determining their regular rate for overtime purposes so if they get a hundred dollar bonus that needs to be added for their total weekly compensation and then you take your total weekly compensation divided by the number of hours worked and that’s your regular rate and you multiply that by one point five or divide it in half, same thing. Then you find out what the over time premium is owed. It’s normally a higher amount than without the bonus included and then you need to take the difference and apply it to every single hour that the person worked during the relevant period in which they earned the bonus. So sometimes that particular scenario happens and the employers is like I had no idea.

Sean: Right.

Hans: As you might imagine. Right? But those are still violations of the law and are still ways that we can get recoveries for people. So in that case, you know, a lot of times I will say hey you didn’t do it on purpose unless you find a memo that says hey we know we have to do this, but we’re not going to do it.

Sean: Right.

Hans: Other times, it’s just blatant. They’re just doing it for what you might imagine. Financial reasons, they’re making a bet. I will not pay people the overtime and the idea that I’ll save money now and you know, nobodies going to sue me or I’ll save enough money that getting sued will make it worth it. So you definitely see those kinds of actors and those are obviously more disturbing and kind of feel more rewarding when you’re able to help people, but you get both. Sometimes, you know the FLSA is a technical statute. There are ways to break the law and kind of not mean it, but you still owe the money and it’s like criminal law or I guess anything, ignorance of the law is no excuse. If you didn’t pay people correctly and you didn’t do anything to educate yourself on it then you not only owe the pack overtime, but then you can owe up to another amount equal to the overtime as the penalty. So that’s even in cases where somebody did it and didn’t mean it, but are still not showing good faith by failing to explore their obligations to provide over time under the FLSA so kind of a long answer to your question, but we see the whole realm of people. We definitely see some people who are just trying to out right take advantage of their workers and other people who just make mistakes and are just managing their business poorly and not doing what you need to make sure your compliment with the FLSA.

Sean: Well and you’ve talked about how these statutes can be quite technical, are there red flags or are there things that non-employment law practitioners should be on the look out as tell tale signs like yeah there’s something going on here employment wise that maybe bears further investigation?

Hans: There are definitely those things and before I kind of talk about that, when we’re working with people because they are technical and sometimes it does like involve a fairly deep conversation and investigation. We just tell people hey if somebody’s been wrongfully terminated, they’re complaining about their employer, whatever just send it to us and we’ll do the thorough investigation and if there’s a claim to be found we’ll find it, but things like if you get ahold of their wage records during discovery or whatever and you notice their getting bonuses, but their overtime rate never changes, if they’re classified as independent contractors, but they’re being treated like employees, if they are doing largely manual work or mostly or all manual work and not exercising any kind of independent discretion and not supervising people, but being classified as exempt and not being paid over time, if you have somebody like the case I described before where they’re not going paid for travel during the work day, if you have like overnight construction workers who are having overnight days to go work on construction jobs throughout the week and they’re not getting paid for that travel time those are very good claims. People who are complaining to you about having to clock out for breaks and not getting paid for those. If you’re dealing with call center employees who are not getting paid for the time it takes to login and boot up your computer you know it’s not as simple as you might think I mean normally call center employees have to login go through a whole process that might take five or ten minutes before they even get to the point where there system is there that allows them to clock in. All right, you’ve got a nurse who has to go to a pre-shift meeting for the day and not getting paid for that, doesn’t clock in until after that. You have police officers who have to go to roll call and aren’t getting paid for that. You have safety meetings beforehand and you’re not getting, you know not clocking in until after the safety meetings. There’s really a million things, but those are some real good concrete examples that you know just asking a few questions can kind of reveal that there might be something there I mean sometimes there is, sometimes there isn’t, but those are definitely red flags.

Sean: Anything else that you’d like our audience to know about?

Hans: I’ll tell you that the FLSA is kind of a cool little statute because not only does it provide the overtime, it also provides liquidated damages, which are double damages and provides for attorneys fees and the way thinking of it from a business perspective that it becomes pretty lucrative cases is that your allowed to bring them as collective or class action opportunities. You can bring them either as a collection under federal law where people have send out notice and people are able to opt in or under state laws you can bring them as rule 23 class actions and you know when you have that opportunity, even if somebodies only owed ten or twenty dollars or a hundred dollars or a thousand dollars, if you multiple that across a lot of employees you can see how those claims really kind of add up. I always say like pennies turn to dimes to dollars to hundreds, thousands and so on.

Sean: Well Hans Nilges, thanks very much for joining us here on Civilly Speaking.

Hans: Hey thank you so much I really appreciate the opportunity.